RALEIGH – The latest opinion to cement the judiciary’s reputation as an activist too often exceeding its constitutionally vested authority in order to deliver partisan decisions came late Friday from the North Carolina Supreme Court.
The case dealt with a 2016 law passed by the N.C. General Assembly that reformed the state and county boards of elections. Democrats and governor-elect Cooper started their whining immediately, claiming that the Republican legislature was stripping the incoming governor of power and ‘disenfranchising voters.’
After two lower courts upheld the law, citing the legislature’s constitutional authority to reform boards of elections, Democrat justices on the N.C. Supreme Court overturned those rulings and handed their comrade Cooper a partisan victory.
What did the law do? Well, it merged the state ethics commission and State Board of Elections, creating a bipartisan state board of elections.
With eight members being evenly divided between Republicans and Democrats, and appointments evenly divided between the legislature and the governor, the new structure was literally bipartisan. It would have implemented the same structure for county boards of elections.
Before the law, the governor got to appoint the majority of elections board members
On the margins, the law changed some rules about voting hours, requiring, for instance, that all district polling stations stay open late if at least one station in the district finds cause to do so. It also extended the tenure of the State Board of Elections executive director.
Far from merely having a more nuanced perspective on the merits of this case, the supreme court justices that ruled on behalf of Cooper brazenly, and unconstitutionally, overstepped their authority for ostensibly partisan reasons.
That’s not my opinion, but the opinion of the dissenting supreme court justices in the case.
Chief Justice Mark Martin, joined by Justice Barabara Jackson issues a stinging rebuke of the majority’s opinion:
“I would hold that, by giving the Governor appointment and removal power over Bipartisan State Board members, and by allowing the Governor to appoint half of those members from his own political party, the General Assembly has satisfied the requirements established by our constitution.
The majority instead constitutionalizes a requirement that the Governor be able to appoint a majority of Bipartisan State Board members from his own political party—to a board responsible for administering our state’s election and ethics laws, no less.[…]By doing so, this Court has encroached on the General Assembly’s constitutional authority and placed the courts in the position of micromanaging the organization and reorganization of state government. Our decision in McCrory does not compel this result, and the prudential exercise of our limited role counsels against it.
“Just as the legislative and executive branches of government are expected to operate within their constitutionally defined spheres, so must the courts.” Hart, 368 N.C. at 126, 774 S.E.2d at 285.5 I therefore respectfully dissent.”
What the courts have done, yet again, is expand their role and power in ways that are expressly forbidden by the constitution. Justice Paul Newby issued his own dissent, also lambasting the majority for its unjust and unconstitutional exercise of power in order to benefit Democrat Roy Cooper.
“Because the state constitution expressly commits this specific power to the legislative branch, this Court lacks the authority to intervene; the issue presents a nonjusticiable political question. In exercising judicial power under these circumstances, this Court violates the very separation-of-powers principle it claims to protect. The Court strips the General Assembly of its historic, constitutionally prescribed authority to make the laws and creates a novel and sweeping constitutional power in the office of Governor—the authority to implement personal policy preferences. In doing so, the Court ignores the carefully crafted, express constitutional roles of the political branches and boldly inserts the judiciary into the political, legislative process.
Nevertheless, once the General Assembly passes a law, the constitution requires the Governor to “faithfully” execute “the laws.” “The laws” are not the Governor’s policy preferences, but are those measures enacted by the General Assembly.”
This is yet another nail in the coffin of government ruled by the constitution, and it’s being driven by a judiciary that should never have had the hammer in the first place, as Newby emphasizes.
Cooper actually predicted this decision months ago when he revealed he was confident the high court would side with him based on the majority of Democrats on the bench.
He responded to the decision with the typically misplaced Leftist drivel about protecting voting rights:
“I appreciate the Court’s careful consideration. Access to the ballot box is vital to our democratic process and I will continue to protect fair elections and the right of North Carolinians to vote.”
What a mockery of constitutional government.
It’s unclear what is to be done about the accelerating unconstitutional behavior of the courts themselves, but in his dissent chief Justice Martin reminds the court just how limited their power is under the constitution, quoting Alexander Hamilton in Federalist No. 78:
“It is beyond question that the courts should have “neither FORCE nor WILL but merely judgment.””
So who is watching the watchmen?